The Lyndhurst

92 F. 681 | S.D.N.Y. | 1899

BBOWN, District Judge.

I do not see sufficient reason for changing the former decisions in these canses.

1. I cannot relieve the tug White from responsibility for failure to have a lookout at the bow of the float which projected about 100 feet beyond the tug. The man stationed 100 feet inore or less, aft on the iloat nearly abreast of the tug’s pilot house, in order to communicate the necessary orders of navigation to the wheelsman on the tug, was the responsible person in charge of the navigation. The authorities are Ml of cases insisting on the necessity of a lookout, having no ocher duties to perform, and stationed at the proper place, namely, at or near the front. Had a lookout been so stationed, there is no reason to suppose that this tier of canal boats would not have been observed in time to avoid them, just as they were observed and avoided by the ferry boat below them. The boats were merely drifting with the tide and had no motion through the water. It was not such a night as would have prevented seeing such boats, even without a light, at a sufficient distance to avoid them. As it is impossible for the tug to show that a lookout properly stationed, and without other duties, would not have enabled the tug to have avoided the collision, she must be held in fault. The Pennsylvania, 19 Wall. 137.

2. The tow did not have the lights required by law. By rule 11 of tbe inspectors’ rules promulgated in accordance with tbe new regulations of 1897 (30 Stat. 102), and approved June 7, 1897, tbe tow was bound to bave a white light at tbe bow and a white light at tbe stern of each outside boat of tbe tier. There was no light at all at tbe bow, and tbe light in tbe cabin, if there was any, was dim. Tbe requirements of tbe law were not complied with; the omission was evidently material. Tbe tow being in charge of tbe Lyndhurst, it was tbe duty of tbe Lyndhurst not only to see that tbe proper lights were set on starting, which she did not do, but also by a proper occasional observation of tbe tow behind, to see that these lights were properly maintained. She was therefore responsible for towing without proper lights on tbe tow, as well as for tbe abandonment of tbe tow for upwards of an hour, left adrift in the stream, unattended and unwatcbed.

3. Tbe requirement of inspectors’ rule 11 that

“Barges and canal boats when towed at a hawser, two or more abreast, in one tier, shall carry a white light on the bow and a white light on the stern of each of the outside boats”

imposes a duty also on tbe tow to carry lights as specified; and this includes tbe duty of attention to tbe lights required to be exhibited so as to keep them in proper condition. In towing upon a hawser, it 5s not reasonable to bold that tbe tug alone should attend to and keep up such lights. Tbe men in charge of tbe boats forming tbe tier ¡should see to this, and be ready to answer any bails from tbe tug in that regard, without requiring tbe tug to stop her towing and come alongside of the tow in order to give any necessary attention to tbe lights during towage. The latter interpretation of tbe rule, would be mot only an unreasonable burden upon tbe tug, but sometimes very embarrassing, if not dangerous. The outside boat is, therefore, in fault on this ground. The case is strictly analogous to that of The Raleigh and The Niagara, 44 Fed. 781, in which on appeal, both were held liable under rule 15 D of section 4233, Rev. St.

4. The maintenance of these lights being in the interest and for the benefit of each boat in the tier, and not for the outside boats alone, the duty of attending to these lights by whomsoever on the tow that duty may be performed, is a duty undertaken in behalf of all the adjacent boats in the tier. The rule, in form, imposes the duty upon the tier as a whole, and not on the outside boats alone. I see no reason for confining this duty to the outside boat alone, when the lights and necessary watch are for the benefit of the inside boats as well. The present case shows that all are interested in the performance of this duty. The Le Roy next inside the Drum Major was injured by the transmission of the blow of collision from the latter. One man as a watchman is probably sufficient for a tier, and the common duty should be divided and shared as the boatmen may arrange among themselves. But whoever acts should be deemed acting for all, since it is in the interest of all; and any negligence in that regard should, therefore, be treated as negligence on the part of the boat injured. Each canal boat should, therefore, recover two-thirds of her damage from the ■other two tugs.